When it comes to settling an argument, there are certain irrefutable facts that a person simply cannot argue: the sky is blue on a clear day, the grass is green, snow is cold, water is wet, etc.  These irrefutable facts form part of common knowledge.  In a court of law, not every single fact has to be proved, as some of them are common knowledge, and it would be a frivolous waste of time to try to prove these facts.  When a judge takes these into account, it is called judicial notice; more specifically defined as reliance on facts that are so well-known that they cannot be reasonably doubted.  Judicial notice and the application of it was a subject extensively covered in Sarah J. Draper’s Legislative Tribunals class at Niagara College, in which I was a student.

A recent Ottawa case, R. v. MacIsaac, has caught sports media attention because of the use of judicial notice. This particular case has created some buzz around the office as well, as Daniel and Partners LLP handles personal injury, sports law, appellate, and judicial review cases.  It is an aggravated assault case that was appealed to the Ontario Court of Appeal because the judge took judicial notice of “hockey sense” in order to make her decision.  As Canadians who live and breathe hockey, the discussion of “hockey sense” is possibly a daily one; who has it, who doesn’t, how much of it does a player have, etc.  While those well-versed, regular viewers of the sport may know the definition of “hockey sense,” it is one of those things that is very difficult to put in words, especially when arguing for a person’s entitlement on benefits arising from a serious injury.

Here is the play, as stated in the case: a puck is making its way around behind the net towards the blue line with 47 seconds left in the game; the victim’s team is up by two goals.  Both the victim and the defendant are skating towards the puck, when the defendant raises his arms, leaps off his skates, and collides with the victim’s head, smashing into the boards and causing the victim’s injuries.  Whether it’s a case of “playing hard” or being reckless is made easier by the fact that the incident occurred in a “No-Hit” league.   In making her decision, the Honourable Madam Justice Diane M. Lahaie relied on “hockey strategy,” in rejecting the testimony of a witness and convicted the defendant of aggravated assault.

On appeal, the Honourable Mister Justice C. William Hourigan for the Court of Appeal held that hockey strategy is not a proper subject for judicial notice.  At paragraph 51 of the decision, Justice Hourigan notes that “[f]rom the sports pages to social media, it is abundantly clear that reasonable Canadians often disagree about what constitutes a rational hockey strategy in a given situation.”  As a result, the appeal was allowed, the conviction quashed, and a new trial ordered.

Blog post by Pedro Rengel

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